Mr X and Office of the Revenue Commissioners (FOI 2014)

Case Number: 160002

Whether Revenue was justified in part refusing the applicant's request for access to records relating to him and/or his business

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

In a request dated 16 July 2015, the applicant sought access to all records created on or after 1 January 2012 that relate to him and/or his business. In a decision dated 13 August 2015, Revenue identified 48 records as relevant to the request. Access was granted to 30 of the records in full, but the remaining 18 records were refused in full.

On 27 August 2015, the applicant sought an internal review of Revenue's decision. On internal review, Revenue varied its decision and granted access to an additional nine records in full and two records in part. In an application received on 4 January 2016, the applicant sought review by this Office of Revenue's decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by Revenue and the applicant and to the relevant provisions of the FOI Act. I have also examined the records forwarded to my Office for the purposes of my review. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

During the course of the review, Revenue reconsidered its position in relation to the records originally identified as relevant to the request and agreed to release a further record in full and two other records in part. A small number of additional records were also located following further searches carried out in response to questions posed by this Office. It is my understanding that these records have also been released to the applicant.

Accordingly, adopting the numbering system used by Revenue in its schedule of records, this review is concerned solely with the question of whether Revenue was justified in refusing access to the following records in full or in part:

For the sake of clarity, I note that this Office has no role in adjudicating on how FOI bodies carry out their functions generally or in investigating complaints against FOI bodies.

Preliminary Matters

Before setting out my findings, I should point out that, while I am obliged to give reasons for my decision, section 25(3) requires that I take all reasonable precautions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that the extent to which I can describe the contents of the records is limited. The release of a records under FOI is regarded, in effect, as release to the world at large.

In addition, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions.

I should also draw attention to section 18 of the FOI Act, which provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." In this case, Revenue has refused access to the records concerned under sections 30(1)(a), 30(1)(c), and 31(1)(a) of the Act. As section 31(1)(a) is a mandatory exemption, I will consider its applicability first.

Section 31(1)(a)
Section 31(1)(a) is a mandatory exemption which protects records that would be exempt from production in proceedings in a court on the ground of legal professional privilege.

Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

(a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
(b) confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

Unlike several other of the exemptions in the FOI Act, the provision at section 31(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest.

Revenue has claimed that litigation privilege attaches to record 19, which consists of 35 pages of internal communications involving the Revenue Solicitors Office (RSO) and the Revenue Legislation Services (RLO). Although not claimed in relation to record 45, it is readily apparent that litigation privilege is also relevant to this record.

For litigation privilege to apply, there must be contemplated or pending litigation and the records must have been created for the dominant purpose of that contemplated or pending litigation. This Office accepts that in certain circumstances litigation privilege may attach to internal communications, provided that the dominant purpose for their creation is contemplated or pending litigation. This Office also accepts that litigation encompasses not alone court proceedings but also proceedings before tribunals exercising judicial functions, such as the Appeal Commissioners.

In this case, it is my understanding that an audit of the applicant and his company was carried out in 2013 that led to tax assessments being issued in December 2014 for the year 2009 notwithstanding certain actions being taken by the applicant to address the potential liability that came to light during the audit. The applicant and his company appealed against the tax assessments in January 2015. The appeals process remains ongoing. A hearing had been scheduled for 19 April 2016, but a new hearing date is now awaited.

Having examined the contents of record 19, I note that it is apparent that a legal challenge was anticipated from the time it came to Revenue's attention that the applicant had made efforts to deal with the potential liability that came to light during the audit. The record reflects that Revenue was preparing its case and strategy for dealing with the challenge posed first by the actions taken by the applicant following the audit and then by the appeal that was anticipated from the beginning and that was ultimately initiated in January 2015. The very first communication in the record is a request to the RSO for legal advice on the matter. I am satisfied that this communication and those that followed as contained in record 19 are privileged under one or both limbs of the legal professional privilege rule and find that section 31(1)(a) therefore applies.

Record 45 is a report to Revenue Appeals Committee outlining the details of the case and the strategy proposed for dealing with the appeal. The record includes a restatement of the legal advice that was obtained in the communications referred to above. It is not clear to me why Revenue did not invoke section 31(1)(a) in relation to records 45; instead access was refused under the discretionary provisions of section 30(1) of the Act. However, in support of its claim for exemption under section 30(1), it gives a description of the record and its contents that confirms that section 31(1)(a) of the Act is the more relevant exemption to apply. As section 31(1)(a) is a mandatory exemption, I am satisfied that it applies to records 45 in the circumstances. For the sake of completeness, I note that I do not regard Revenue's neglect in invoking section 31(1)(a) in relation to record 45 as a waiver of privilege, as Revenue sought at all times to maintain the confidentiality of this document through its claim for exemption under section 30(1) of the Act.

Section 30
In its internal review decision, Revenue refused access to records 8, 34, 47, and 48 under section 30(1)(a) of the Act. Access to records 35, 41, and 45 was refused under section 30(1)(c) of the Act, but in its submission to this Office, Revenue claims that section 30(1)(a) also applies to these records. As I have already found record 45 to be exempt under section 31(1)(a) of the Act, I do not consider it necessary to determine whether this record is also exempt under section 30(1)(a) or (c) of the Act.

Section 30(1)(a)
Section 30(1)(a) provides that an FOI body may refuse access to a record if it considers that access could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. In arriving at a decision to claim a section 30 exemption, a decision maker must, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test is not concerned with the question of probabilities or possibilities; it is concerned with whether or not the decision maker's expectation is reasonable. It is therefore sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations. However, to show that there are adequate grounds for the expectations, it is essential that the decision maker explain how or why he or she believes that release of the particular records concerned will give rise to the harm envisaged; i.e. the FOI body must show the link between granting access to the record concerned and the harm identified. Section 30(1) is subject to a public interest test under section 30(2).

Record 8 is a computer print out that contains screen shots of Revenue's internal system. It dates from July 2015, long after the audit had been initiated and while the matter was already on appeal, but apparently relates to new developments. According to Revenue, it refers to tests that are used in evaluating cases and determining the actions to be taken. Revenue contends that release of this record would reveal its case management and profiling methods and thus would divulge the criteria considered by it in deciding which cases are selected for examination. I note that some of the redactions identify, in a broad manner, the issues that were queried by Revenue and that were considered as requiring further examination, but I do not see that they reveal any details that could reasonably be expected to facilitate the avoidance of such an examination. As the former Commissioner observed in Case 98102 (Mr &amp; Mrs ABJ and the Office of the Revenue Commissioners), available at www.oic.ie, many taxpayers and their agents know the way Revenue selects cases for audit. The late Mr. Kevin Murphy was not satisfied that the selection criteria used in a particular case could reasonably be expected to prejudice the effectiveness of future audits. I further note that, in this case, the relevant "risk areas" were identified to the applicant in correspondence, a copy of which was released under FOI in record 27.

Record 34 is a profile sheet. According to Revenue, the redactions consist of a private mobile telephone number, an office telephone number, as well as details of tests that it uses in evaluating cases. Revenue claims that the redacted information about the tests shows its approach to the taxpayer's case and would give an insight into the methods and information used in risk assessing a case. I note that in Case 99199 (Mr X and the Office of the Revenue Commissioners), also available at www.oic.ie, the former Commissioner accepted that the release of the "Business Trade Profiles" that were at issue could prejudice the effectiveness of future audits where they contained details of factors considered by Revenue in the selection of cases for audit and details of the various audit tests used having regard to the nature of the business concerned. In this case, however, the so-called details are merely acronyms for what seem to be broadly described issues. I do not see that any actual details are at issue that could give any meaningful insight into Revenue's methodology or investigative methods. I certainly do not see how disclosure could allow taxpayers to conceal tax evasion. I accept, however, that the private mobile telephone number (unlike the office telephone number) is personal information that is exempt under section 37 of the Act, which is a mandatory exemption. Moreover, there is no public interest in releasing the mobile telephone number which would outweigh the owner's right to privacy, nor would the release of the mobile telephone number under FOI be to the benefit of the owner.

The withheld portion of record 35 is described as consisting of eight pages of the auditor's analysis of information gathered during the audit and other information that was being examined. Revenue says that release of this information would reveal its investigative methods. However, the fact that information about Revenue's investigative methods would be disclosed does not itself identify a harm to such investigative methods. The method concerned is one that is widely used and very unlikely to be undermined by disclosure of the mere fact that it is used by Revenue.

Record 41 is described as containing the auditor's notes and an in-depth analysis of the case. The primary exemption claimed is section 30(1)(c), but section 30(1)(a) is also claimed in Revenue's submissions. Revenue asserts that release of the record would disclose Revenue's approach to examining cases and would prejudice the effectiveness of the tests employed. It also says that it would reveal the type of investigative tools used when examining a case and would place the applicant in a more advantageous position in future discussions and at the appeal hearing. Revenue further claims that it would also be of benefit to other taxpayers who have similar cases pending.

I note that in Case 99232 (Mr X (on behalf of Y Partnership) and the Revenue Commissioners), also available at www.oic.ie, the former Commissioner accepted, in the circumstances of that case, that certain material relating to the manner in which Revenue had carried out its investigation of the partnership concerned would be of significant assistance to taxpayers subject to similar investigations, allowing them to predict the likely trend of Revenue enquiries and to prepare themselves in advance to deal with such enquiries. He was satisfied that putting such taxpayers in this advantageous position could reasonably be expected to prejudice the effectiveness of the investigations involving them.

However, it is also well settled that a mere assertion of an expectation of harm is not sufficient to establish that the expectation of harm is reasonable. While I accept that release of record 41 would reveal information about the auditor's analysis of the applicant's tax affairs, Revenue has not explained how disclosure of the analysis could reasonably be expected to prejudice the effectiveness of any tests employed. The audit in this case did not involve the type of tax arrangements that were under investigation in Case 99232. It seems to me that a taxpayer operating his or her own business is likely to be aware of the types of accounting records that an auditor would regard as relevant. In this case, the applicant was in fact requested to make certain relevant information available. Moreover, while disclosure of the analysis may assist the applicant or other similar taxpayers in preparing for discussions with Revenue or in relation to an appeal hearing, this itself does not establish the requisite prejudice for the purposes of section 30(1)(a) of the Act. As a general matter, it is information that would facilitate taxpayer in circumventing the tax laws, for instance, by giving them a strategic advantage in preparing for discussions or hearings, that I regard as prejudicial to the effectiveness of Revenue's tests, examinations, etc or the procedures or methods employed for the conduct thereof.

The withheld parts of records 47 and 48 consist of an interview questionnaire and interview template, respectively. Revenue claims that disclosure would divulge lines of questioning used in the examination of cases and thus facilitate the preparation for such examinations. As indicated above, it is information that would facilitate tax evasion that I generally regard as prejudicial to the effectiveness of Revenue's tests, examinations, etc or the procedures or methods employed for the conduct thereof. The applicant would be well aware of the areas that Revenue examined during his own interview. In the event that his memory, or that of his agent, is faulty, he can use the released portion of record 48 as an aide memoire. There is nothing to prevent the applicant or his agent from sharing information about his case with others, though tax practitioners are likely to be very knowledgeable about such matters in any event. Indeed, it seems to be the case that the areas covered are those of relevance to the taxpayer's particular circumstances and thus are unlikely to come as any surprise in the event of an audit.

In sum, having examined the records concerned in light of the arguments presented, I do not see how disclosure could reasonably be expected to facilitate tax avoidance measures or otherwise to prejudice the effectiveness of Revenue's tests, examinations, etc or the methodology and investigative methods it uses. Accordingly, I am not satisfied that section 30(1)(a) applies.

Section 30(1)(c)
Section 30(1)(c) allows an FOI body to refuse a request if access to the record could reasonably be expected to "disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body". Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of an FOI body. It does not contain a harm test. However, FOI bodies should identify the relevant negotiations at issue and show that releasing the records could reasonably be expected to disclose positions taken for the purpose of those negotiations.

This Office adopts the definition of "negotiation" as set out in the Oxford English Dictionary: "the action or business of negotiating or making terms with others." The verb "negotiate" is defined as "to hold communication or conference (with another) for the purpose of arranging some matter by mutual agreement; to discuss a matter with a view to some settlement or compromise." Relevant factors in considering whether there is or was a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement. The Commissioner also accepts that, generally speaking, proposal-type information relating to a public body's negotiations would be exempt under section 30(1)(c).

In this case, Revenue identifies the relevant negotiations as the ongoing appeal proceedings. No claim has been made, however, that any effort is being made to reach some agreement or settlement in the context of the appeal proceedings. On the contrary, Revenue's concern seems to be that the release of records 35 and 41 would strengthen the applicant's position at the expense of its own in future discussions and particularly at the appeal hearing. As Revenue has not shown that the release of records 35 and 41 would disclose positions any taken or to be taken (or plans, procedures, etc) for the purpose of negotiations, I am not satisfied that section 30(1)(c) applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of Revenue. I affirm its decision to refuse access to records 19 under section 31(1)(a) of the Act. I vary its decision in respect of record 45 by finding that it is exempt under section 31(1)(a) rather than section 30(1) of the Act. I annul its decision in relation to remaining records at issue and direct that access be granted in full subject to the redaction of the private mobile telephone number from record 34.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.